State v. ZaragozaState v. Zaragoza
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On September 28, 1981, a jury found appellant guilty of first degree murder in violation of
Winifred Duggan, the victim in this case, was a seventy-eight-year-old woman. A
At about 8:30 or 8:45 on the evening of May 26, 1981, appellant and Winifred Duggan were seen in a liquor store near Sixth Avenue and Van Burén in Phoenix. Winifred appeared to be unaware of where she was and appellant was controlling her. Appellant had Winifred’s purse and refused to give it to her when she reached for it. Appellant took money out of the purse and bought a can of beer and a pint bottle of white port wine. They then left the store.
Some time between 9:00 and 10:00 that same evening appellant and Winifred approached some people who were drinking beer on the porch of their apartments on Sixth Avenue. Winifred appeared to be nervous or scared and appellant spoke for her whenever she was spoken to. Appellant and Winifred remained there for 15 to 20 minutes. During that time both of them were seen drinking beer.
At 11:10 that night appellant was seen in the alley behind the same apartments on Sixth Avenue. He climbed up on a metal utility box and pulled some clothes off the top of the building across the alley from the apartments. He then threw several objects onto the roof of that building.
The following morning Winifred Duggan’s body was found in the alley a short distance from the apartments. The body was naked except for a bra, which had been pushed up exposing her breasts, and a pair of sandals. Winifred Duggan had several head wounds caused by blows from some blunt object. She bled to death as a result of those wounds. She also had a bruise at the back edge of her vagina that was consistent with penetration by a penis or finger. A foreign pubic hair that matched appellant’s was found meshed with the victim’s own pubic hair.
Police officers found some bloody clothes, two bloody beer bottles and a bloody white port wine bottle on the roof of the building across from the apartments on Sixth Avenue. The bottles also had some white hair stuck to them, and some identifiable latent fingerprints on them. The blood and hair on the bottles matched the victim’s and the prints matched appellant’s. Appellant’s fingerprint was also found on one of three bloody paper bags found near the body.
Appellant was arrested later that morning. He admitted having been with the victim the night before but denied killing her. He was charged with first degree premeditated murder and first degree felony murder alleging that he killed the victim while committing or attempting to commit robbery or sexual assault. At the close of the evidence at trial, the court directed a verdict of acquittal on the premeditated murder charge.
Appellant raises five issues on appeal: (1) whether the trial court erred in failing to instruct the jury on the crime of attempted sexual assault; (2) whether the prosecutor’s closing argument was improper; (3) whether Arizona’s death penalty statute is unconstitutional; (4) whether the death penalty was properly imposed in this case; and (5) whether the revocation of probation and sentence for aggravated assault was proper.
Failure to Instruct on Attempted Sexual Assault
At appellant’s trial the jury was instructed as follows:
“The crime of first degree murder requires proof of the following two things: One, the defendant committed or attempted to commit sexual assault, and, two, in the course of and in furtherance of the crime or immediate flight from the crime, the defendant caused the death of Winifred Duggan.
“The crime of sexual assault requires proof of the following two things: One, the defendant intentionally or knowingly penetrated the vulva of Winifred Duggan with a part of his body without Winifred Duggan’s consent, and, two, Winifred Duggan was not legally married to the defendant.”
These instructions and the order in which they were given conformed perfectly with Recommended Arizona Jury Instructions.
The United States Supreme Court has stated, “[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.”
Henderson v. Kibbe,
431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203, 212 (1977). If a defendant does not object to a trial court’s failure to give an instruction then the defendant may not claim error on appeal unless the failure to instruct rises to the level of fundamental error.
State v. Mincey,
130 Ariz. 389, 636 P.2d 637 (1981),
cert. denied,
455 U.S. 1003, 102 S.Ct. 1638, 71 L.Ed.2d 871 (1982);
State v. Dippre,
121 Ariz. 596, 592 P.2d 1252 (1979);
In the instant case appellant was accused of first degree murder in violation of
It is not immediately apparent from the language of
Even if the trial court’s failure to define attempt had been fundamental error it would have been harmless in the instant case. Error is harmless if there is no reasonable probability under the facts of the case that the verdict might have been different had the error not been committed. State v. Malloy, 131 Ariz. 125, 639 P.2d 315 (1982). There can be no serious doubt that the victim in the instant case was killed in the course of a sexual assault or an attempted sexual assault. 2 The evidence showed that the victim’s body was found naked except for her bra, which had been pushed up exposing her breasts, and her sandals. There was a foreign pubic hair meshed with the victims as if the attacker’s pubic area had been mounted on top of the victim’s. Moreover, there was a bruise on the back edge of the victim’s vagina. Testimony established that the bruise was caused within minutes of the fatal head injuries and that it was consistent with penetration by a penis or finger. This uncontroverted evidence, at the very least, established that the victim was killed in the course of an attempted sexual assault, and indicated quite strongly that she was killed in the course of a completed sexual assault. It appears from the record that the only seriously contested issue in this case was not whether the victim was killed in the course of an attempted or completed sexual assault, but whether appellant was the person who killed her. There is no reasonable probability that the giving of an attempt instruction would have caused the jury to find that the victim was not killed in the course of an attempted or completed sexual assault and thereby acquit appellant. See State v. McAlvain, supra; People v. Welch, 8 Cal.3d 106, 104 Cal.Rptr. 217, 501 P.2d 225 (1972); cf. Rizzuto v. State, supra (failure to define “sexual contact,” which is specifically defined by statute, did not prejudice defendant because it has an ordinary meaning that is tracked by the statute); People v. McGhee, 67 Mich.App. 12, 239 N.W.2d 741 (1976) (failure to instruct on underlying felony is not error where there is no doubt that killing occurred in course of felony); People v. Jones, 66 Mich.App. 223, 238 N.W.2d 813 (1975) (failure to instruct on underlying felony is not error where there is no doubt that killing occurred in course of felony).
Prosecutor’s Closing Argument
In his rebuttal closing argument the prosecutor stated:
“Now, the defense attorney told you that the victim did not deserve to die, and referred to it as a tragic occurrence, but it was more than that. It was a brutal and senseless killing in which the defendant smashed in the head of a 78-year old lady and left her to bleed to death, as the doctor told you, in the alley. That’s first degree murder from an emotional point of view and a logical point of view.”
Appellant did not object to this statement at his trial but argues on appeal that it was reversible error.
Appellant’s failure to object during the closing argument constitutes a waiver of any right to review on appeal unless the prosecutor’s statement amounts to fundamental error. State v. Mincey, supra; State v. Marvin, 124 Ariz. 555, 606 P.2d 406 (1980). We find that the statement objected to by appellant in the instant case was not improper and certainly not fundamental error.
Constitutionality of Arizona’s Death Penalty Statute
Appellant claims that
Appellant also claims that
As the United States Supreme Court made clear in
Bell v. Ohio,
438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978), and
Lockett v. Ohio,
438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and as this court made clear in
State v. Watson,
120 Ariz. 441, 586 P.2d 1253,
cert./ denied,
440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1978), a death penalty statute may not preclude the sentencer from considering, as mitigating circumstances, any aspects of a defendant’s character or record and any circumstances of the offense relevant in determining whether a sentence less severe than death is appropriate.
“Mitigating circumstances shall be any factors proffered by the defendant or the state which are relevant in determining whether to impose a sentence less than death, including any aspect of the defendant’s character, propensities or record and any of the circumstances of the offense * * * jy
The language of this provision clearly allows the defense or the prosecution to offer and the sentencing judge to consider any mitigating circumstance relevant to the sentencing decision. This includes the defendant’s mens rea. Furthermore, it is clear from the record that at the sentencing hearing appellant raised and the sentencing judge considered the question of appellant’s mens rea at the time of the crime.
Imposition of the Death Penalty in the Instant Case
Appellant claims that the death penalty should not have been imposed in this case. We review every death penalty imposed in the State of Arizona to insure that it is applied with consistency and not in an arbitrary or capricious manner. Our duty is not simply to determine whether the trial court’s finding is supported by sufficient evidence. Rather, we must make a separate and independent determination as to whether, based on the record before us, the death penalty should be imposed. State v. Schad, 129 Ariz. 557, 633 P.2d 366 (1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982); State v. Watson, 129 Ariz. 60, 628 P.2d 943 (1981).
The death penalty is reserved for first degree murders in which either the circumstances of the killing are so shocking that it
In the instant case the trial court found two aggravating circumstances and no mitigating circumstances. The court found, under
The trial court also found under
In the instant case the trial court found that the murder was not cruel. We agree. The deputy medical examiner who performed the autopsy on the victim testified that she bled to death from head injuries caused by blows from blunt objects. He could not, however, determine whether she was conscious at the time she received any of the blows. There was no evidence to indicate that the victim suffered great pain. Consequently, we cannot find that the killing was especially cruel. State v. Ortiz, supra; State v. Ceja, supra; State v. Clark, supra.
The trial court did find that the killing was especially heinous or depraved. We agree. The victim in this case was 78 years old. She had limited mental capabilities and was easily manipulated. She was helpless at the hands of appellant. He could have accomplished whatever criminal goals he desired without killing her. Furthermore, it is clear that appellant was aware of these facts. The way he treated her in the liquor store and while they were at the apartments on Sixth Avenue demonstrates this. We find that by sexually assaulting Winifred Duggan and senselessly killing her, knowing full well that by virtue of her advanced age and limited mental capabilities she was easy prey, appellant demonstrated a shockingly evil and corrupt state
We now address the question of mitigating circumstances. Under
Appellant argues, as he did in the trial court, that there are several mitigating circumstances present in the instant case. First, appellant argues that the giving of a felony murder instruction is a mitigating circumstance. We have held that the giving of a felony murder instruction may be considered as a mitigating circumstance. State v. Schad, supra. In order to be a mitigating circumstance, however, it must somehow be relevant in determining whether the death penalty should be imposed. The fact that a case goes to the jury on a felony murder theory rather than a premeditated murder theory is not relevant to that determination in a case where the defendant intended to kill the victim or where the defendant knew with substantial certainty that his conduct would cause death. See State v. Schad, supra; State v. Jordan, 126 Ariz. 283, 614 P.2d 825 (1980).
Turning to the case at issue, the evidence establishes that appellant repeatedly hit the victim on the head and left her bleeding in the alley. There is no evidence that appellant did not intend to kill the victim. It is reasonable to conclude, in the absence of any evidence to the contrary, that one who beats a 78 year old woman on the head and leaves her bleeding in an alley intends to kill or knows with substantial certainty that his action will cause death. See State v. Schad, supra; State v. Jordan, supra. Consequently, we find that the giving of the felony murder instruction was not relevant in determining whether appellant should receive a death sentence and therefore is not a mitigating circumstance.
Appellant also argues that the trial court found that he did not intend to kill the victim and that that is a mitigating circumstance. Appellant bases this argument solely on the fact that the trial judge directed a verdict of acquittal on the charge of premeditated first degree murder. Appellant’s argument is without merit. It is clear from the record that the trial court directed a verdict of acquittal on the premeditated murder charge only because the state failed to prove premeditation. The court did not find that appellant did not intend to kill the victim. Appellant has not established lack of intent as a mitigating circumstance.
Next, appellant argues that he was an alcoholic and “probably intoxicated” at the time of the killing and that that is a mitigating circumstance. A defendant’s intoxication or alcoholism at the time of the offense is a mitigating circumstance if the evidence shows that it significantly impaired the defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. State v. Britson, 130 Ariz. 380, 636 P.2d 628 (1981); State v. Jordan, supra; see State v. Smith, 125 Ariz. 412, 610 P.2d 46 (1980). The evidence offered by appellant in the instant case falls far short of this showing.
We have reviewed the remaining factors appellant relies on and we find that they are not mitigating circumstances. After conducting our independent examination of the record we find the existence of two aggravating circumstances, no mitigating circumstances, and certainly no mitigating circumstance sufficiently substantial to call for leniency. Furthermore, we have reviewed prior cases and find that a sentence of death in this case is not excessive or disproportionate to penalties imposed in other cases in which defendants with histories of violent criminal behavior have been convicted of first degree felony murder. See State v. Greenwalt, 128 Ariz. 150, 624 P.2d 828 (1981); State v. Steelman, 126 Ariz. 19, 612 P.2d 475 (1980); State v. Jordan, supra; State v. Arnett, 125 Ariz. 201, 608 P.2d 778 (1980); State v. Evans, 124 Ariz. 526, 606 P.2d 16 (1980). Consequently, we find the death penalty appropriate in this case.
Probation Revocation
Appellant claims that because his conviction should be reversed the order revoking his probation and imposing sentence in connection with his prior aggravated assault conviction should be vacated. Because we affirm appellant’s conviction we also affirm the trial court’s revocation of probation and sentence.
We have examined the record for fundamental error and find none.
The judgment of conviction and sentence for first degree murder is affirmed. The revocation of probation and sentence for aggravated assault is affirmed.
HOLOHAN, C.J., and HAYS, CAMERON and FELDMAN, JJ., concur.
Notes
. The indictment also accused appellant of premeditated murder and of killing the victim while committing or attempting to commit robbery. The trial judge directed a verdict of acquittal on the charge of premeditated murder and did not submit robbery-felony murder to the jury.
. A person commits sexual assault by knowingly or intentionally engaging in sexual intercourse with any person not his or her spouse without that person’s consent.